A mad conspiracy theorist might be forgiven for imagining that
undercover agents of the state instigated the U.K. riots, creating
anarchy in the interests of creating demand for an authoritarian
response. Indeed, considering the stiff, swift prison sentences being
imposed without trial on very petty offenders,
you don't have to be a paranoid wingnut to regard the riots as a
crisis -- an opportunity to popularize repression -- that
anti-libertarians could be trusted not to waste.

I'm not
suggesting that looters and other thugs shouldn't be arrested summarily,
but their prosecutions require a bit more finesse. You can't prosecute a
mob; you can only prosecute individuals suspected of participating in
it, even though they surrendered their individualism to the singularity
of the crowd. To prosecute individuals fairly, you need individual
evidence of guilt and a nuanced approach to their degrees of
culpability. For what it's worth, I'm speaking from experience.

In
1977, when New York City suffered a five-borough blackout, entire
neighborhoods were ravaged by looting, especially in Brooklyn, where I
was a fledgling Legal Aid lawyer. The blackout began on an horribly
hot, humid, stressed out summer night, during a heat wave, with the City
still in financial crisis, (two years after a Daily News
headline writer famously declared "Ford to New York: Drop Dead,") and
during David Berkowitz's, (the Son of Sam's,) killing spree, which
roughly coincided with Rupert Murdoch's acquisition of the New York Post,
which made the most of his serial murders. The looting was predictable:
I remember walking out of a restaurant into a fearful, pitch-black
street, thinking all hell was about to break loose.

The police
arrested people en masse, appropriately; they had no choice but to try
to sweep the streets. But they also had no place to house thousands of
arrestees and no evidence against many of them, who should have been
released the next day. What is legally necessary or appropriate,
however, is often politically impossible, so men with no criminal
records whose cases would eventually be dismissed for lack of evidence
were held for days in sweltering cages in the basement of the criminal
court building, awaiting arraignment and release, on bail or their own
recognizance. One of my clients kissed the filthy, fetid Brooklyn street
when, after two or three days, he was finally freed. My recollections
of the days and nights spent processing people are a bit vague, but I
will never forget walking down into the hot and airless pens and seeing
shirtless men practically piled on top of each other, arms reaching out
of the bars, voices yelling "Lega Aid, Lega Aid, Got my file?"

Again,
I don't want to minimize the material and cultural damage occasioned by
looting or evoke sympathy for people who indulge in it. I do want to
point out that a fair criminal justice system has limited power to rain
retribution on all of them, because of evidentiary problems (which
facial recognition technology not available in 1977 can only partly
solve today) and because justice requires recognizing degrees of guilt,
which harsh sentences for very petty offenders tend to ignore: A young
woman who receives a five-month prison sentence
for receiving a pair of looted shorts from a friend is being held to a
standard of probity that, I'd be willing to bet, most generally law
abiding Britons couldn't meet.

The British are engaged in the
usual debate about whether looting reflects an amoral sense of
entitlement generated by an over-extensive welfare system or whether it
is driven, in part, by misdirected political angst and anger over
inequality. Both sides may be partly right; but both sides ignore a
third, partial explanation: looting is an opportunistic crime that
people of varying social and economic classes with varying political
views are prone to commit. Some of my clients back in 1977 were working
people with no prior criminal records who passed by looted stores and
helped themselves to milk or diapers, radios or TVs. They had more in
common with educated, affluent people I know who would grab what they
could out of a broken Saks Fifth Avenue window if (no one was looking)
than with the looters who threw the first rocks, drove cars into
storefronts or set them on fire.

To suggest that looting, like
other forms of mob violence, is, partly a function of human nature is
not to decry efforts to deter or punish it. "Everybody does it" is no
defense to illegal or unethical behavior; but it is perhaps a reproach
to excessive prosecutorial zeal, a reminder of the virtues of not
throwing stones.